BY MICHELLE ANDREWS | The health law prohibits insurers from discriminating against people with serious illnesses, but some marketplace plans sidestep that taboo by making the drugs that people with HIV need unavailable or unaffordable, complaints filed recently with the Department of Health and Human Services’ Office for Civil Rights allege. The effect may be to discourage people with HIV from buying a particular plan or getting the treatment they need, according to the complaint.

The complaints, brought by Harvard Law School’s Center for Health Law and Policy Innovation, charge that plans offered by seven insurers in eight states are discriminatory because they don’t cover drugs that are essential to the treatment of HIV or require high out-of-pocket spending by patients for covered drugs.

The center filed complaints against Humana plans in six states: Alabama, Georgia, Illinois, Louisiana, Tennessee and Texas. Cigna plans were targeted in three states: Georgia, Tennessee and Texas. The group filed complaints against five other insurers: three in Pennsylvania, including Highmark, Independence Blue Cross and UPMC health plan; a complaint against Community Health Choice in Texas and a complaint against Anthem Blue Cross Blue Shield in Wisconsin.

“What’s most important to us is that there’s a robust enforcement mechanism around the promises … in the ACA and its regulations, especially the anti-discrimination provisions,” said Kevin Costello, director of litigation at the health law center.

Although the center’s focus is on HIV drugs, the complaints may help people with other chronic illnesses who may face similar hurdles on access to drugs, Costello said.

The HHS Office for Civil Rights investigates and enforces violations of civil rights and health information privacy. The Harvard center complaints were filed in September.

Federal rules prohibit marketplace plans from adopting benefit designs — such as coverage rules or reimbursement rates — that discriminate based on age, illness, race, gender or sexual orientation, among other things. But federal regulators have declined to define discriminatory plan design, noting that they will examine the facts on a case-by-case basis.

They’ve hinted, however, at some specifics in the regulations. They say, for example, that refusing to cover a single-tablet drug regimen, which is often associated with better compliance because a number of different drugs are combined in one pill, or placing most or all of the drugs that treat a specific condition in the highest cost tiers are examples of “potentially discriminatory practices.”

Working with local AIDS groups in several states, the Harvard center examined hundreds of silver-level plans sold on the marketplaces to gauge whether their formularies would allow access to six treatment regimens that are the current standard of care for treating people who are newly diagnosed with HIV. In addition, they looked at the plans’ cost-sharing requirements, Costello said.

They found, for example, that this year Anthem silver plans in Wisconsin cover only four of the 16 drugs or combination products that are recommended to meet the current standard of care, and they fail to cover any single-tablet regimens. In Illinois, the center charged that Humana’s silver plans place 16 of the 24 most commonly prescribed HIV drugs in the highest cost-sharing tier, which requires patients to pay 50 percent of the cost. With estimated monthly costs ranging from $377 to $684 for different drug regimens, enrollees in the Illinois Humana plans would have to pony up between 8 and 14 percent of their average monthly income, according to the complaint.

“All Humana health insurance plans offered through the Health Insurance Marketplace fully comply with state and federal laws and regulations,” said Alex Kepnes, Humana’s director of corporate communications. He added, “Humana shares the concerns of HIV/AIDS organizations regarding the high cost of HIV/AIDS drugs and we are committed to working with them to lower prescription drug costs.”

Similarly, Anthem Public Relations Director Scott Larrivee said, “Anthem Blue Cross and Blue Shield is committed to providing all of our members with access to the care and services they need, including appropriate coverage of medications for the treatment of HIV/AIDS. Anthem Blue Cross and Blue Shield in Wisconsin covers more than a dozen medications for the treatment of HIV/AIDS and all required therapeutic drug categories are included on our formulary/drug list which is compliant with (marketplace) requirements.”

Cigna spokesman Mark Slitt said his company does not comment on pending legal matters.

The center’s work builds on an earlier discrimination complaint filed in 2014 with the Office for Civil Rights by two advocacy groups, the AIDS Institute and the National Health Law Program, against four Florida insurers that were selling marketplace plans. That complaint, against some of the same insurers highlighted by the Harvard center, charged that the insurers placed all the HIV drugs in the highest cost-sharing tier. The Florida insurance commissioner reached agreements with the four plans to move the HIV drugs to generic tiers and reduce cost sharing, and the same arrangement will continue in 2017, said Carl Schmid, deputy executive director of the AIDS Institute.

“We’ve been talking about these issues for years now,” Schmid said. “These things need to be addressed, and it could be through enforcement” by the Office for Civil Rights.

Marketplace coverage of drugs to treat HIV and other serious conditions have improved somewhat in recent years, according to research by Avalere Health, a consulting company. An analysis found that in the case of five classes of drugs that treat cancer, HIV and multiple sclerosis, fewer silver plans in 2016 placed all the drugs in the class in the top tier with the highest cost sharing or charged patients more than 40 percent of the cost for each drug in the class.

Speaking about HIV drugs, Caroline Pearson, a senior vice president at Avalere, said that while access and costs in marketplace plans are improving, they vary widely from plan to plan. Employer plans tend to offer better coverage, she said.

The new complaints may put more pressure on the Office for Civil Rights to address this issue, said Katie Keith, a steering committee member for Out2Enroll, a health insurance advocacy group for the lesbian, gay, bisexual and transgender community.

“It’s smart to do this in multiple states,” she said. “People are really pushing for more concrete guidance.”

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